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ASADA gets a taste of its own medicine

Whatever the outcome of the imminent federal court trial over the legality of ASADA’s Essendon investigation, the anti-doping authority’s standing is already severely diminished.

On Friday television cameras will be allowed to film a Federal Court case to determine whether Australia’s main doping agency is acting outside the law and perhaps even the constitution. It has certainly acted outside the spirit of what we hold dear when it comes to justice.

Who wins that case will be determined by the Federal Court and naturally I pass no judgment. But putting to one side the main issues of that case, the world has rarely seen a doping enforcement body acting in the manner we have seen from the Australian Sports Anti-Doping Authority (ASADA).

The actions of ASADA are quite separate from the actions of the Essendon Football Club, which have been the subject of penalties that some say are too high and others too low. That’s a separate debate which is not the subject of this commentary (see footnote).

Let me isolate a series of strange ASADA actions which are not the central points of the court case, although some may be embraced by the case:

ASADA correctly decided that the Essendon AFL football club and its players should be investigated. But before any investigations were carried out a deal was negotiated with the AFL central body which provided that, with some qualifications, if the players acted without knowledge they might not be prosecuted. This arrangement was then, rightly or wrongly, explained to the players in the form of a pre-trial deal. Later there was a small backtrack by ASADA which was not explained to the players, who then gave evidence on the basis of an alleged ‘deal’. How on earth could a body that aims to be reputable negotiate any deal before an investigation and then allow people to give evidence in the belief (rightly or wrongly) that there was a ‘deal’? ASADA then reneged on the ‘deal’. Imagine what the players felt.

An enormous amount of ASADA’s Essendon investigation concentrated on a substance called AOD-9604. The interrogation pressure put on the players about this substance was so intense that an emotional Essendon captain ‘confessed’ on TV that he has taken AOD-9604 and he was then booed by opposing fans. Tens of thousands of words were written by ASADA-friendly journalists about Essendon, its captain and AOD-9604.Business Spectator took the trouble to ask the Australian Crime Commission why they had publicly declared in writing that AOD-9604 was not prohibited under schedule S2 of the World Anti-Doping Agency prohibited list. In his emailed reply, Crime Commission chief John Lawler revealed that the Crime Commission had made that declaration after seeking “expert advice” from the Australian Sports Anti-Doping Authority (The sports drug debacle falls on ASADA's shoulders, July 17 2013).As we all know, WADA was to later ban AOD-9604 but that was after the Essendon incidents. Given that it was clearly not banned at the time of Essendon administering the substance, why were all the questions asked that led to so much unnecessary suffering by the Essendon players and captain? Naturally all allegations about AOD-9604 have now been dropped, as always had to be the case, and as Business Spectator pointed out at the time. ASADA was made to look foolish at best and incompetent at worst.

An ASADA “interim report” was released by the AFL which made a vast number of unsubstantiated allegations. It was very damaging to the players. ASADA can claim it did not release the material but it made the report and must have known it would be published. In court cases great care is taken in releasing prosecution information prior to a trial because it will jeopardise that trial. In circulating that interim report ASADA did not adhere to those rules.

Leaks of bits of information have dominated the whole affair. No one knows where those leaks came from. Many of them broke the law. Again via leaks we learn a case has been built up that Essendon players may have taken the banned TB4 substance which has been denied by everyone involved. It is not my role to comment on the validity of this allegation except to say that under the Australian justice system you are presumed innocent before any trial.

A former police officer was appointed to head ASADA. He quickly became the envy of every police officer in the world when he used ASADA powers to devise a scheme which, if applied to normal criminal cases, would ‘solve’ most global crimes. Let me use a theoretical situation to explain. If the ASADA system was used to ‘solve’ general crimes then people whom police think might be guilty would be issued with a ‘show cause’ notice without telling them what the charge was. The alleged criminal would then have to answer this unknown charge. If the answer was deemed unsatisfactory then the person would be immediately sent to jail, pending a hearing not by a judge and jury but by what in Australia we might call a Kangaroo court. To avoid such a hearing, the sentence might be reduced if the person pleaded guilty to the unknown charge and ‘co-operated’ with the police. More seriously, a version of such a bizarre theoretical stunt was actually applied to a group of AFL players, who now belong to a number of clubs, with ‘jail’ being replaced with suspension. Naturally the AFL Players Association, representing all players, was very angry. On the surface every element of Australian justice was being ignored by ASADA.To be fair to ASADA, this system of conviction was actually devised for people who were found to have a banned substance in a blood test reading. The ‘show cause’ notice gave them the chance to either challenge the blood test or present a very good explanation for why they had the substance in their blood. But the mechanism is entirely inappropriate when there is no blood test, no confessions and no formal charge or evidence put before the person being asked to ‘show cause’.

The separate legal matters that go before the Federal Court on Friday may be thrown out or the case might go on for an extended period -- perhaps years.

In this long and drawn-out affair, in my view ASADA has lost the respect it requires both locally and internationally to do its necessary job in the best possible manner. And if the court case is prolonged it may not have the money. Perhaps a new body and a new leader is required.

Footnote: I am an Essendon supporter and a social member of the Essendonians. My views are my own and not those of the Essendon Football Club or any other Essendonians.

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